You know that a last will and testament is a super important document when it comes to estate planning, especially if you have a family.
(Did you procrastinate on writing a will? That’s OK. You can use Fabric’s simple online will in as little as 15 minutes.)
Once you’ve written your will, you’re good to go, right? Not so fast. You need to make it legally binding. In most states, that only requires printing your will, signing and having it witnessed by two adults. In other words, it doesn’t require notarization . . . so what’s the deal with getting your will notarized, then?
Although this step is (usually) optional, it could make carrying out your will significantly easier on your loved ones down the road. This part of the process involves a document called a “self-proving affidavit,” and fortunately, it’s easy to add to your will.
A self-proving affidavit is a document, signed by you and two witnesses, that verifies under oath that your witnesses saw you sign your will and that it’s legally valid. Generally speaking, your self-proving affidavit must be notarized, meaning you and the witnesses sign it in front of a notary public. Often, the self-proving affidavit is only about a page long.
Note that in most states (except Louisiana) you don’t need a self-proving affidavit in order to make your will legally binding (remember what we said about just printing and signing in front of two witnesses?). So, this is a supplemental document that you can sign in addition to your will—its sole purpose is to make your will easier to “prove” down the line.
“In every state, in order for a will to be considered valid by probate court, it needs to be signed by witnesses,” says Dave Fagundes, Baker Botts LLP Professor of Law at the University of Houston Law Center. Your witnesses’ job is to confirm that you signed this will and were of sound mind. And, of course, by the time this is relevant, you won’t be around and can’t confirm it personally.
One way to make sure the will is valid is to have the judge bring both witnesses into court and ask in official legal language whether the signatures are genuine, and whether they believe the testator was mentally coherent and not under duress. The self-proving affidavit squares off this inconvenience.
“Proving a will is a cumbersome process,” Fagundes says. “When you have an affidavit, it says under penalty of perjury that what the witnesses are signing here is true. They’ve already sworn to the authenticity of the will.”
The self-proving affidavit lets your loved ones skip the initial court date to open probate, which saves time and legal fees, and keeps witnesses from having to take time off work or travel to appear in court. Overall, it saves your loved ones stress at a time when they’re grieving.
A self-proving affidavit also lets you avoid complications if your witnesses turn out to be unavailable. If your original witnesses are dead or unreachable when it’s time to validate your will, this puts the probate judge in a more difficult position.
“You’re still trying to get to this question of authenticity,” Fagundes says. “You can’t call witnesses into court, but the lawyer who witnessed the will signing could come in and you could cross-examine her. You could subpoena the scribe. You could verify signatures with a handwriting expert.”
It’s always possible that the judge might accept the will without taking these measures, especially if no one is contesting the will. Still, that means leaving things up to an unknown judge’s preference. Setting up a self-proving affidavit removes any potential uncertainty about whether this really is the correct will.
The short answer is probably not, although it’s a good idea. If your will is written, signed and witnessed in accordance with your state laws, then it’s valid, with or without any extra documentation. A self-proving affidavit (which does involve notarizing a will) can simply make the process easier.
In a few states, there might be little point in taking the effort to get a self-proving affidavit. The following states don’t offer self-proving options for a will. Even if you include a self-proving affidavit, your witnesses will have to appear in court:
District of Columbia
In a few other states, a self-proving affidavit never hurts but isn’t necessary. Unless someone wishes to challenge the will’s validity, witnesses don’t need to appear in court as part of the ordinary probate process in these states:
In Vermont, if you and witnesses sign the will before a notary public, the will is considered self-proving without an additional form
Fagundes notes a legal innovation: the one-step self-proving will, which includes the important legal language in a clause in the will itself, instead of as an attached affidavit. Illinois, Indiana and Texas are three states that offer this option. States often have minor differences in their laws, so it’s always smart to double-check what’s on the books where you live.
Courtroom drama over a will is usually more common on TV than in real life. But if you die and the judge has to decide between multiple different versions of your will, a self-proving affidavit carries a lot of power.
“If you have a piece of sworn testimony appended to a will that says this will is valid, this is presumptively the will. Between two wills, one of which has the force of law and the other that doesn’t, the massive advantage is with the one with the self-proving affidavit,” says Fagundes.
This kind of decision between two wills would make sense if the judge is looking at two radically different sets of instructions. That said, if the wills are basically the same, the judge will favor the more recent version, even if the earlier one is the only one with a self-proving affidavit. Of course, that means you’re back to a situation where the judge might call the witnesses into court to validate the most recent version of the will.
Bottom line? You’ll make the process smoothest for your loved ones by including an affidavit whenever you revise or rewrite your will.
Life is busy. If the thought of adding another legal doc to your to-do list is stressing you out, let’s pause for perspective. Realistically, what are the consequences if you let this one slide?
On a scale from 0 to 10, where 0 is “totally not a big deal” and 10 is “absolute catastrophe,” dying without a self-proving affidavit attached to your will probably ranks about a 3.5. That is, potentially frustrating but not something that will derail your whole will. There might be some extra time, money and inconvenience involved for your family, but the more important thing is that they have a will to follow.
That said, this is a pretty simple document to put in place, and it can save time and stave off complications. Once you see what the process looks like, you may decide that signing a self-proving affidavit is a worthwhile step to pave a much smoother probate process down the road.
Here’s your quick guide to getting this document ready so you can make probate simpler for your family.
Write your will. You can work with a lawyer or use an online will kit like Fabric’s to write your will.
Grab the right self-proving affidavit form. The states that accept self-proving affidavits may prefer versions with slightly different wording. Note that your Fabric will comes with a non-state specific, self-proving affidavit form to fill out, if you choose.
Take your witnesses to a notary public. Most banks offer notary services, so notarizing a will can be as simple as checking which hours your bank has a notary on duty. Many libraries and even UPS stores have notaries, too.
Sign the form. The notary public will put you under oath to sign.
Store the affidavit with your will. Make sure your loved ones know where to find your will and any other important documents. (Where should I keep my will?)
Your will is an essential part of distributing your estate and helping to care for loved ones after you die.
If your will is the hero, think of the self-proving affidavit as the handy sidekick making it faster and easier for your will to do its important job.
Fabric exists to help young families master their money. Our articles abide by strict editorial standards.
This article is meant to provide general information and not to provide any specific legal advice or to serve as the basis for any decisions.
Fabric isn’t a law firm and we aren’t licensed to practice law or to provide any legal advice. If you do need legal advice for your specific situation, you should consult with a licensed attorney and/or tax professional.
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